A.E. v. Madison County Department of Human Resources

REL: January 13, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

ALABAMA COURT OF CIVIL APPEALS
OCTOBER TERM, 2022-2023
_________________________

CL-2022-0644
_________________________

A.E.

v.

Madison County Department of Human Resources

Appeal from Madison Juvenile Court
(JU-20-807.01)

EDWARDS, Judge.

In October 2020, the Madison County Department of Human

Resources ("DHR") filed in the Madison Juvenile Court ("the juvenile

court") an action seeking to have A.G. ("the child"), the child of V.G. ("the

father") and A.E. ("the mother"), declared dependent. In January 2021,
CL-2022-0644

the juvenile court entered a judgment declaring the child dependent and

ordering DHR to provide protective supervision over the child. The

January 2021 judgment did not award legal or physical custody of the

child to DHR or to any third party but instead granted DHR the

discretion to determine the child's physical placement. In addition, the

January 2021 judgment approved as concurrent permanency plans

"return to parent" and "permanent relative placement."

In February 2021, after a permanency hearing, the juvenile court

entered a permanency order again declaring the child dependent,

"vesting" protective custody of the child with DHR, and permitting DHR

to begin transitioning the child to placement in the home of the mother.

The February 2021 permanency order did not award legal or physical

custody of the child to DHR or to any third party. The February 2021

permanency order again approved the concurrent permanency plans of

"return to parent" and "permanent relative placement."

In July 2021, the juvenile court entered a permanency order

concluding that the child remained dependent and maintaining

protective supervision over the child by DHR; again, the July 2021

2
CL-2022-0644

permanency order failed to award legal or physical custody to DHR or to

a third party. The July 2021 permanency order required DHR to provide

reunification services to the father and to the mother. Like the

permanency orders that preceded it, the July 2021 permanency order

approved the concurrent permanency plans of "return to parent" and

"permanent relative placement."

In October 2021, the juvenile court entered another permanency

order declaring that the child remained dependent, ordering DHR to

continue providing protective supervision of the child, and placing the

child in the "physical care" of the paternal grandmother, C.P. ("the

paternal grandmother"). The juvenile court again approved the

concurrent permanency plans of "return to parent" and "permanent

relative placement." The October 2021 permanency order also required

DHR to continue to provide reunification services to the mother and to

the father.

On February 4, 2022, the juvenile court entered a permanency

order finding that the child remained dependent, ordering DHR to

continue providing protective supervision, and ordering that the child

3
CL-2022-0644

remain in the physical custody of the paternal grandmother. The

February 4, 2022, permanency order adopted as the sole permanency

plan "permanent relative placement." The February 4, 2022,

permanency order did not address reunification services.

After a trial on February 15, 222, the juvenile court entered a

judgment on March 14, 2022, awarding permanent custody of the child

to the paternal grandmother and to the paternal grandfather, R.G. ("the

paternal grandfather"). In the March 14, 2022, judgment, the juvenile

court awarded the mother visitation "as arranged by the [paternal

grandmother and the paternal grandfather] and supervised by [A.S., ('the

maternal grandmother')] or other adult as agreed." The visitation

provision of the March 14, 2022, judgment continues:

"The mother shall be entitled to exercise not less than two (2)
hours of visitation each calendar month with the child and
may exercise additional visitation as agreed upon by the
parties. In the event the parties are unable to agree upon a
schedule of visitation or supervision of visitation, the mother
shall exercise her visitation under the supervision of the Both
Parents Program of the Family Service Center or similar
professional service, at the mother's expense. If the parties
cannot agree on a time, visitation will be on the first Saturday
of the month from 1:00 until 3:00 p.m."

4
CL-2022-0644

The March 14, 2022, judgment also awarded the father certain visitation

rights. The mother filed a timely notice of appeal of the judgment; the

father did not appeal.

The testimony taken at the February 15, 2022, trial encompasses

only 79 pages. Nesha Green, the DHR caseworker assigned to the family

in August 2021, testified that the child had been placed in the home of

the paternal grandmother and the paternal grandfather for the entire

time that she had served as the caseworker. Green indicated that the

mother had completed a substance-abuse assessment, a psychological

evaluation, and a program she referred to as "healthy families."

In addition, Green testified that the mother had engaged in

supervised visits with the child and that the mother had also participated

in color-code drug screening. Green testified that the mother's visitation

with the child had "fluctuated up and down" and said that the mother

had reportedly not been "as in tune with the child as she should have

been." According to Green, the mother had, at times, tested positive on

her drug screens, most recently on February 10, 2022, for marijuana.

5
CL-2022-0644

Green said that the mother had failed to take a drug screen on February

14, 2022, the day before the trial. 1

Green further explained that the mother had been diagnosed in a

January 2022 psychological evaluation as suffering from severe clinical

depression, severe anxiety, posttraumatic stress disorder, and panic

disorder. Although Green admitted that DHR had originally intended

that the mother submit to a mental-health assessment at Wellstone, a

mental-health-services provider, Green said that the mother had been

unable to submit to that assessment because of an outstanding bill for

previous services at Wellstone. Green further admitted that she had not

scheduled a psychological evaluation for the mother until January 2022

and that she had not yet provided the mother with contact telephone

numbers for the mother to use to schedule a medication assessment.

When asked why the psychological evaluation and provision of contact

information for a medication assessment had been delayed, Green

1Thetestimony at trial indicated that some confusion had arisen
concerning the "color" upon which the mother was to submit to color-code
drug screenings, which may have contributed to her missing the
February 14, 2022, drug screen.
6
CL-2022-0644

indicated that she had no answer for those delays. Green also testified

that she had recently set up new parenting classes for the mother.

Green testified that the mother had secured stable housing, but she

said that she did not know where the mother was living other than "with

friends." Green also said that the mother had recently secured

employment at a day-care facility. Green offered no testimony

concerning the mother's earnings, but the mother was appointed counsel

by the juvenile court, indicating that she is indigent.

The mother testified that the child had been removed from her

custody in September 2020 when the mother was 17 years old.2 She

admitted that the child was placed into the physical custody of the

paternal grandmother pursuant to a safety plan in September 2020

because the mother was a minor and had tested positive for marijuana at

the time of the child's birth. The mother testified that she had completed

a program called "Healthy Families" and that she had been informed that

she did not need substance-abuse services by "Bradford." She said that

2According to the mother, she turned 18 years only 6 days after the
child's birth.
7
CL-2022-0644

she would follow all recommendations relating to her mental health. The

mother further admitted that she had "slipped a little bit with services"

but she said that she had done so because she was frustrated and "[felt]

like I'm doing all of this and I'm not getting anything out of it." She also

stated that she felt like the paternal grandmother "just want [sic] my

baby anyway" and believes that the paternal grandmother and paternal

grandfather would "kick her out of [the child's] life."

According to the mother, she had become employed at a day-care

facility about one month before the trial. Although the mother did not

indicate what she earned from her employment, she testified that she

was saving money to secure a residence of her own. She said that, as of

the time of trial, she was often living with friends and sometimes living

with the maternal grandmother, which indicates that she did not have a

stable residence. The mother testified that she had reliable

transportation.

The mother explained that the child had been returned to her

custody, albeit with DHR supervision, in February 2021. She said that

she and the child had initially resided with her great-grandmother, C.E.

8
CL-2022-0644

("the maternal great-grandmother"). However, the mother said, "they"

had made her leave the maternal great-grandmother's house because of

some conflict with a sibling, after which, she said, she and the child had

begun residing with the maternal grandmother. The mother indicated

that she and the maternal grandmother suffered from occasional conflict

because, the mother admitted, the mother did not like not getting her

own way. The mother complained that she had not received enough help

with the child when living at the maternal grandmother's home,

indicated that she had been "overwhelmed," and said that she had sought

help from DHR, which resulted in the child's being placed back in the

home of the paternal grandmother in August 2021.

The mother stated:

"I didn't have any help or anything. And then one day I tried
to take a shower, and [the child], she was right there. I didn't
have anybody to watch her. She gets out of everything. She
act [sic] like she just got to be right up under me. So it was
hard to do anything. So when I took a shower, she Nair'd her
hair and everybody kept saying it was my fault. I couldn't
take it anymore."

The mother said that she and the father had ended their

relationship in August 2021. She said that she did not feel comfortable

9
CL-2022-0644

around the paternal grandmother any longer and said that she felt like

the paternal grandmother had allowed the father and his new girlfriend

to visit with the child more than her. The mother indicated that she

would like the maternal grandmother or S.S., who is her stepfather, to

supervise visits. The mother admitted that she was not ready to assume

custody of the child but said that she desired additional time to complete

services so that she could become a capable parent.

Rochelle Jones, an employee of DHR, testified that she had

performed a home study on the home of the paternal grandmother and

paternal grandfather. She said that the environment was safe but that

the paternal grandfather had a criminal history from the period between

1986 and 1996 and had served one year in prison. According to Jones,

DHR could not approve the home study because of the paternal

grandfather's criminal history but did not oppose a transfer of the child's

custody to the paternal grandmother and paternal grandfather. Jones

testified that the child was doing well in that placement.

Amanda Gentle, the child's guardian ad litem, testified that, in her

opinion, the child's custody should be transferred to the paternal

10
CL-2022-0644

grandmother and paternal grandfather. She explained that DHR had

offered the mother several services and that the mother had attempted

but not completed those services. Gentle characterized the mother's

attempts at complying with services as "sporadic." As an example, Gentle

testified that, in November 2021, the mother had been permitted three

opportunities to visit with the child at locations outside of the paternal

grandmother's home but that the mother only fully exercised that

opportunity once; Gentle said that the mother canceled the first of such

visits and cut the third visit short without explanation.

Gentle testified that she had had concerns about the safety of the

child during the period between February 2021 and August 2021 when

the child had lived in the mother's custody. Gentle testified that, when

the mother and the child were living with the maternal great-

grandmother, concerns arose about safety after an incident involving a

sibling of the mother's shooting a gun at the father's car. Gentle said

that, when the mother and the child had been living with the maternal

grandmother and Gentle had visited that home, she had observed that

the child was being allowed to climb steps unsupervised and that another

11
CL-2022-0644

child in the home was playing in a bathtub of water without supervision.

Gentle also testified that the mother had told her that she did not realize

how hard it was to care for a baby. Gentle opined that the mother was

not in a condition to provide stability for the child. According to Gentle,

she would not be comfortable allowing the mother to have visitation with

the child in the maternal grandmother's home but would be amenable to

allowing the maternal grandmother to supervise the mother's visitation

in a public place.

On appeal, the mother first challenges the juvenile court's award of

custody to the paternal grandmother and paternal grandfather. Her

argument, however, rests solely on her contention that DHR failed to

make reasonable efforts to rehabilitate her.

" 'Reasonable efforts' include 'efforts ... to make it
possible for a child to return safely to the child's home,'
[former] Ala. Code 1975, § 12-15-65(m) [now codified at Ala.
Code 1975, § 12-15-301(13)], such as efforts to rehabilitate the
parent so that the parent can 'again exercise familial rights
and responsibilities toward the child in question.' Miller v.
Alabama Dep't of Pensions & Sec., 374 So. 2d 1370, 1374 (Ala.
Civ. App. 1979); see also D.M.P. v. State Dep't of Human
Res., 871 So. 2d 77, 89 n.10 (Ala. Civ. App. 2003) (plurality
opinion). Whether efforts at reunification have been
reasonable and whether those efforts have failed or succeeded
are questions of fact for the juvenile court to determine. T.B.
12
CL-2022-0644

v. Cullman County Dep't of Human Res., 6 So. 3d 1195, 1199
(Ala. Civ. App. 2008).

" 'In making that determination, the juvenile court
must first identify the parental conduct,
circumstances, or condition that led to the removal
of the children and prevented their return to the
custody of the parent.... The juvenile court must
then consider the efforts expended by the parent
in overcoming those problems and the progress the
parent has made in eliminating or reducing those
problems, so that they no longer constitute a
barrier to reunification.'

"T.B., 6 So. 3d at 1199."

R.T.B. v. Calhoun Cnty. Dep't of Hum. Res., 19 So. 3d 198, 204 (Ala. Civ.

App. 2009).

The child was initially removed from the custody of the mother in

September 2020 based on the mother's testing positive for marijuana at

the time of the child's birth. Although DHR placed the child with the

mother in February 2021 in an attempt to reunite them, the mother

returned the child to DHR after having difficulty managing to care for

the child. The mother admitted that she had not fully participated in

services offered to her by DHR, and her admissions show she had no

stable residence at which to rear the child at the time of the trial. The

13
CL-2022-0644

mother stated that she would comply with services aimed at assisting her

with her mental-health issues, which had only recently been identified in

early 2022, but those services had not yet been offered to the mother, in

part because of an outstanding bill at one of the mental-health-service

providers utilized by DHR.

"This court has repeatedly recognized that sustained
efforts at rehabilitation of the parent must be balanced
against the child's need for permanency and stability. See,
e.g., T.B., 6 So. 3d at 1202; J.W.M. v. Cleburne County Dep't
of Human Res., 980 So. 2d 432, 440 (Ala. Civ. App.
2007); Talladega County Dep't of Human Res. v. M.E.P., 975
So. 2d 370, 374 (Ala. Civ. App. 2007); and D.G. v. State Dep't
of Human Res., 569 So. 2d 400, 403 (Ala. Civ. App. 1990). At
some point the child's need for permanency and stability
overcomes the parent's right to continued
rehabilitation. M.W. v. Houston County Dep't of Human
Res., 773 So. 2d 484, 487 (Ala. Civ. App. 2000)."

R.T.B., 19 So. 3d at 206. As of the time of the February 2022 trial, the

child, who was 17 months old, had resided with the paternal

grandmother for approximately 11 months. DHR's attempt to reunite

the mother with the child had failed because the mother, who was barely

an adult herself, was overwhelmed by the demands of caring for the child.

We have explained that DHR is required to assert only " 'reasonable

efforts' to reunite the family," and we have considered the fact that DHR
14
CL-2022-0644

has spent considerable time attempting reunification as proof that DHR's

efforts were reasonable and that continued efforts were not necessary.

See id. (explaining that a 34-month period of attempted rehabilitation

was reasonable, especially in light of the fact that, in situations involving

foster-care placement of a dependent child, a 12-month period for

rehabilitation is considered sufficient in most situations). Based on our

review of the record, the evidence indicates that, despite DHR's previous

efforts and a period of nearly 18 months, the mother was not

rehabilitated sufficiently to assume custody of the child.

"Upon a finding that reasonable efforts at family reunification have

failed, a juvenile court may make any disposition that serves the best

interests of the child …." R.T.B., 19 So. 3d at 206. The evidence

presented at trial indicates that the paternal grandmother and paternal

grandfather can provide a stable and loving home for the child, and we

cannot agree that DHR should have delayed securing the child's

permanency to offer the mother further services. Accordingly, we affirm

the judgment of the juvenile court insofar as it awards custody of the

child to the paternal grandmother and paternal grandfather.

15
CL-2022-0644

The mother also challenges the award of visitation. She complains

that the visitation award is overly restrictive and violates her right to

visitation, which, as she correctly notes, she maintains. Ala. Code 1975,

§ 12-15-102(23) (defining the residual rights maintained by the parent of

a child's whose custody has been transferred by a juvenile court); R.B.O.

v. Jefferson Cnty. Dep't of Hum. Res., 70 So. 3d 1286, 1291 (Ala. Civ. App.

2011) (plurality opinion) (applying former Ala. Code 1975, § 12-15-1(24),

and stating that "[a] parent who has lost custody of a child through

dependency proceedings retains the residual right to visitation with the

child"). The visitation awarded by the juvenile court in the present case

provides the paternal grandmother and the paternal grandfather almost

total control over when and where the mother may visit with the child.

The juvenile court included a provision requiring that, if the parties could

not agree on the details of visitation, the mother could visit at a visitation

center for two hours on the first Saturday of each month, at her own

expense. The mother contends that, practically speaking, the award of

visitation in the present case is illusory. See J.C. v. Houston Cnty. Dep't

of Hum. Res., 313 So. 3d 1137, 1142 (Ala. Civ. App. 2020) (explaining that

16
CL-2022-0644

a visitation award that "gives the custodian the unfettered right to

arrange, or to decline to arrange, visitation between the mother and the

child at her sole discretion … provides only an illusory right

to visitation in the mother"). Under the circumstances of the present

case, we agree.

"[T]he standard governing visitation in dependency cases is the

same as the standard governing visitation in divorce cases." M.C. v.

Jefferson Cnty. Dep't of Hum. Res., 198 So. 3d 518, 522 (Ala. Civ. App.

2015). As we explained in K.D. v. Jefferson County Department of

Human Resources, 88 So. 3d 893, 897-98 (Ala. Civ. App. 2012) (quoting

R.B.O., 70 So. 3d at 1288-89 (footnotes omitted)):

" 'In dependency cases, a juvenile court possesses
discretion over visitation, pursuant to former § 12-15-71(a)(4),
Ala. Code 1975[, now codified at Ala. Code 1975, § 12-15-
314(a)(4).] That Code section provided that the juvenile court
shall exercise its discretion according to the "welfare and best
interests of the child." Notably, that standard is identical to
the standard used for determining the visitation rights of
noncustodial parents in divorce cases. See Carr v.
Broyles, 652 So. 2d 299, 303 (Ala. Civ. App. 1994) ("[T]he
primary consideration in establishing the visitation rights
accorded a noncustodial parent is always the best interests
and welfare of the child."). In Carr, this court held that, under
the best-interests standard, in order "to limit a parent's
visitation based on misconduct, the limitation ordered must
17
CL-2022-0644

be supported by evidence that the misconduct of the parent is
detrimental to the child." 652 So. 2d at 304 (citing Jones v.
Haraway, 537 So. 2d 946, 947 (Ala. Civ. App. 1988)); see
also Ex parte Thompson, 51 So. 3d 265, 272 (Ala. 2010) ("A
trial court in establishing visitation privileges for a
noncustodial parent must consider the best interests and
welfare of the minor child and, where appropriate, as in this
case, set conditions on visitation that protect the child.").' "

Unlike the mother in K.D. and the father in R.B.O., the mother in the

present case does not challenge the requirement that her visitation be

supervised. However, we find the principles discussed in K.D. and R.B.O.

to be as apt in the mother's situation as they were to the situations of the

respective parents in K.D. and R.B.O.

We have repeatedly reversed visitation awards that permit a

custodian almost unfettered discretion to control visitation with a parent.

See, e.g., D.B. v. Madison Cnty. Dep't of Hum. Res., 937 So. 2d 535, 541

(Ala. Civ. App. 2006); K.B. v. Cleburne Cnty. Dep't of Hum. Res., 897 So.

2d 379 (Ala. Civ. App. 2004); and K.L.U. v. M.C., 809 So. 2d 837 (Ala. Civ.

App. 2001). By and large, the visitation provision crafted by the juvenile

court in the present case permits the paternal grandmother and the

paternal grandfather to forestall visitation by the mother at their total

discretion. See D.B., 937 So. 2d at 541 (reversing a judgment awarding
18
CL-2022-0644

visitation that had made "[the mother's] visi tation with the child 'subject

to any conditions and limitations determined to be necessary and

appropriate by [the child's custodian]' "). The juvenile court attempted to

ameliorate the improper visitation provision by providing that the

mother must have two hours of visitation a month, which, if the parties

cannot otherwise agree on the details of visitation, may be held at a

visitation center at the mother's expense.

However, we fail to find that aspect of the provision sufficient to

save it from reversal. We have explained that " '[a] juvenile court exceeds

its discretion … when it imposes an overbroad restrict ion on visitation

that does more than is necessary to protect the child and thereby unduly

infringes on the parent-child relationship.' " K.D., 88 So. 3d at 897-98

(quoting R.B.O., 70 So. 3d at 1291). As the mother contends, nothing in

the record indicates that the juvenile court had a basis for providing the

mother with such a limited amount of guaranteed visitation. See P.D. v.

S.S., 67 So. 3d 128, 136 (Ala. Civ. App. 2011) (reversing a judgment

providing for supervised visitation based on "the lack of evidence

indicating that the mother had ever abused the children or had placed

19
CL-2022-0644

the children in harm's way"). DHR returned the child to the care of the

mother in February 2021, indicating that, at least at that time, nothing

in the mother's conduct or condition placed the child in such danger that

contact between the child and the mother should be limited in duration.

At the February 2021 trial, DHR presented no evidence that the mother

posed a particular danger to the child such that her visitation should be

limited to a mere two hours per month.

Furthermore, the requirement that the mother, who is an indigent

19-year-old, pay for visitation at a visitation center in order to secure the

minimal amount of visitation that she has been afforded creates a

situation that is untenable. Because the paternal grandmother and the

paternal grandfather wield control over almost all aspects of the mother's

visitation, to be assured of any contact with the child, the mother must

arrange visitation at a visitation center on the first Saturday of each

month and pay for that visitation. If the mother does not arrange such

visitation or cannot afford to pay for such visitation (the cost of which

does not appear in the record), the paternal grandmother and the

paternal grandfather could easily prevent visitation with the mother by

20
CL-2022-0644

not agreeing to the times or alternate places that the mother may suggest

for visitation.

Accordingly, we reverse the judgment of the juvenile court insofar

as it awarded the mother only two hours per month in guaranteed

visitation, required that the mother assume the costs of visitation at a

visitation center, and permitted the paternal grandmother and the

paternal grandfather nearly unfettered discretion over the time and

place of the mother's visitation, and we remand the cause for entry of a

judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Thompson, P.J., and Moore, Hanson, and Fridy, JJ., concur.

21